THE INTERSECTION BETWEEN FAMILY LAW AND ELDER LAW by Phoebe P. Hall Tracy N. Retchin Hall & Hall, PLC 1401 Huguenot Road Midlothian, Virginia 23113 (804)897-1515 February 2011
I. INTRODUCTION
Family Law and Elder Law are closely related fields sharing a focus on assisting individuals and their family members with legal issues and planning opportunities that arise at critical times in their lives. The specialized knowledge of an attorney in each of these fields can be beneficial to clients seeking advice and guidance with decision-making or when performing advance planning with regard to future needs, particularly when they involve seniors.
II. IMPORTANT MATTERS RELATING TO SEPARATION AND DIVORCE FOR SENIORS
For an individual contemplating separation or divorce, making vital decisions and taking important steps with long term consequences, it can be instructive and helpful to obtain the advice and guidance or collaborative assistance of both a family law attorney and an elder law attorney. These efforts can be particularly beneficial with matters such as prenuptial agreements, separation, divorce, separate maintenance, spousal support (alimony), property division, and long term care planning for seniors.
III. IMPORTANT MATTERS ARISING WHEN SENIORS ARE IN DETERIORATING CIRCUMSTANCES AND THE SENIOR’S CHILDREN, OR COMMITTEES, ARE HANDLING THE FINANCIAL MATTERS, OR WHEN THE SENIOR HAS A GUARDIAN
A common situation that can make planning especially complicated is when one or both parties are frail or even incompetent, when the marriage is of short duration, and/or when children of prior marriages are handling their own parent’s finances, perhaps with a power of attorney. The seniors may not even be living together as one or both may be in assisted living, a nursing home or staying with a child who can take care of them. Sometimes, one party’s children may not be interested in helping the other party or cooperating in any way with the other party’s children. In some situations, a guardian or committee may be involved.
IV. PREMARITAL AGREEMENTS A. Virginia has adopted the Premarital Agreement Act, found in Section 20- 147 and seq. of the1950 Code of Virginia, as amended, covering agreements executed on or after July 1, 1986. Despite its title, the act applies not only to premarital agreements but also to marital agreements entered into by married persons during the marriage.
B. A “Premarital Agreement” is defined in Section 20-148 as an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”
C. A Postmarital agreement, or “Marital Agreement” as it is called in the Code of Virginia,1 in Section 20-155, permits married persons to enter into agreements with each other for the purpose of settling the rights and obligations of either or both of them just as in a premarital agreement.
D. A key difference between the two types of agreement is that the marital agreement is effective immediately upon execution, while the premarital agreement is only effective upon marriage.
E. The Act requires the agreement to be in writing and signed by both parties.2 However, the statute provides that it shall not be required to be in writing and that it will be considered as executed in either of the following situations: 1. If it is contained in a court order endorsed by counsel or the parties on the record personally, or 2. If it is transcribed by a court reporter and affirmed by the parties on the record personally.
F. If the parties reconcile after the agreement is signed, it shall abrogate such agreement unless otherwise expressly set forth in the agreement.
G. The permissible contents of an agreement under the Premarital Agreement Act are specified in Section 20-150 which provides that the parties may contract as to the following matters: 1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; 2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; 3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; 4. Spousal support; 5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
1Sec. 20-155, 1950 Code of Virginia, as amended.
2Sec. 20-149, 1950 Code of Virginia, as amended. 6. The ownership rights in and disposition of the death benefit from a life insurance policy; 7. The choice of law governing the construction of the agreement; and, 8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
H. In family law cases, issues often arise about enforcement of a prenuptial agreement. Although Section 20-149 states that such agreement shall be enforceable without consideration, Section 20-151 sets forth circumstances under which such an agreement is not enforceable: 1. Where it was not voluntarily executed, or 2. Where it was unconscionable when executed and before execution of the agreement the person was not provided a fair and reasonable disclosure and did not voluntarily and expressly waive in writing any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. Recitations in the agreement create a prima facie presumption that they are factually correct.
I. It is also important to know that in determining eligibility for its benefits, Medicaid does not recognize a prenuptial agreement and will treat the couple as if there were no such agreement.
J. When a senior couple marries, an attorney must recognize the possibility that one or both of them may need long term care, and consider drafting appropriate provisions in a prenuptial agreement and in their estate plans which may include trusts and/or gifting. Thinking about appropriate terms for wills, powers of attorney, and medical powers of attorney are also important. These are key areas in which the help of both an elder law attorney and a family law attorney can be invaluable.
V. SEPARATION AND DIVORCE A. When Seniors Divorce 1. Due to increased life expectancy, a divorce rate of 50% or more in the general population, more multiple (successive) marriages among seniors, and the increasing acceptance of divorce as a way of life, more seniors are divorcing than in the past. Some seniors are living separately without actually divorcing. 2. Reasons for Separation and Divorce Among Seniors a) Seniors are less likely than younger people to divorce. However, some seniors divorce for the same reasons that people of any age divorce: lack of interest in staying married, lack of affection, dysfunction in the marriage, dissatisfaction with the marriage, mental health problems, alcoholism, drug abuse, financial problems, desire to be free, or a myriad of other reasons. b) Domestic Abuse is another reason for separation or divorce among seniors: 1) The domestic abuse has been going on for years and the victim finally decides to leave. 2) With the onset of old age an existing pattern of abuse is exacerbated to the point that a spouse who has tried to stay in the marriage despite the problems no longer can survive in the marriage. 3) The abuse is a new pattern, which may arise from the onset of illness that can cause personality changes. Nonetheless, regardless of the cause, it can create an unsafe condition for the withdrawing spouse. c) Health can be a significant factor in senior divorce. 1) The illness of one or both parties can make it hard for them to stay together, even if the parties have the best of intentions and a desire to stay together. 2) Long term care costs can be a factor in divorce when the couple’s assets are being depleted at a rapid pace because of a nursing home placement leaving few resources for the healthy spouse to live on. Divorce may appear to be the only way to preserve enough of the couple’s assets. 3) Sometimes the ill spouse lacks the means to pay for care but is unable to qualify for needed benefits because of the well spouse’s financial resources. The well spouse might be unwilling to apply his or her resources to the ill spouse’s care, feeling the need to preserve these resources (which may in some cases be largely premarital or inherited resources) for his or her own care. Further, the well spouse may wish to preserve an inheritance for his or her children. This is particularly true in a second marriage later in life and in a situation in which the children may be controlling the financial decisions.
B. When Seniors Separate 1) Some senior couples live in separate locations because one of the parties has been placed in an assisted living facility or a nursing home, or has been moved to the home of a caretaker child not as a result of an intention to terminate their marriage but because of health problems and the need for care taking that the other spouse is not able to provide. 2) Other couples may choose to separate for purposes of ending the marital relationship without going through a divorce. They simply live separately with no agreement, or they may enter into a written separation agreement that establishes their respective rights and obligations as between themselves. Such an agreement, however, is not binding on Medicaid. 3) Still other couples separate under circumstances in which at least one of the parties intends for the separation to be permanent and plans to pursue obtaining a divorce or at least a divorce from bed and board or a decree for separate maintenance. 4) The legal steps involved in protecting a client when a separation is contemplated differ based on the particulars of each client’s situation, but legal advice and guidance can be invaluable in each of these situations. There are many situations where the help of both a family law attorney and an elder law attorney can be extremely beneficial or even essential. 5) Financially, this can be important with regard to health benefits, social security, retirement benefits, the ability to qualify for government benefits during the parties’ joint lifetimes, and even the ability to qualify following death of a party.
C. Grounds for Divorce 1. Divorce from the Bonds of Matrimony or Absolute Divorce3 Virginia recognizes both fault based and non-fault based grounds for divorce. A decree of absolute divorce, also known as a divorce from the bonds of matrimony, may be obtained after a one year waiting period on fault based grounds such as cruelty, reasonable apprehension of bodily harm, or willful desertion or abandonment. Further, a decree of absolute divorce may be obtained more immediately, without the one year waiting period, on the grounds of adultery. As to non-fault based divorce, an absolute divorce may be obtained by either party after one year; in a situation where there is a separation agreement and no minor children, the time period is shortened to six months. 2. Effect of Divorce from Bond of Matrimony (Absolute Divorce) on Contingent Property Rights4 a) “Upon the entry of a decree of divorce from the bond of matrimony, all contingent rights of either consort in the real and personal property of the other then existing, or thereafter acquired, including the right of survivorship in real or personal property title to which is vested in the parties as joint tenants or as tenants by the entirety, with the right of survivorship as at common law, shall be extinguished, and such estate by the entirety shall thereupon be converted into a tenancy in common.5” b) This means, for example, if a couple owns a house jointly with right of survivorship, the ownership is immediately and automatically converted to tenants-in-common with no
3 Section 20-91, 1950 Code of Virginia, as amended.
4 Section 20-111, 1950 Code of Virginia, as amended.
5 Section 20-111, 1950 Code of Virginia, as amended. survivorship rights by entry of a final decree of divorce. Each party’s share is then subject to his or her creditors. 3. Further Effect of Divorce From Bond of Matrimony for Decrees entered on or after July 1, 19936 a) The entry of a decree of absolute divorce on or after July 1, 1993, automatically revokes certain benefits unless a written agreement of the parties provides a contrary result. b) “Any revocable beneficiary designation contained in a then existing written contract owned by one party that provides for the payment of any death benefit to the other party is revoked. A death benefit prevented from passing to a former spouse by this section shall be paid as if the former spouse had predeceased the decedent.” c) The term “death benefit” includes any payments under any of the following: 1) A life insurance contract 2) An annuity 3) A retirement arrangement 4) A compensation agreement, or 5) Any other contract designating a beneficiary of any right, property or money in the form of a death benefit. d) If the divorce decree or separation agreement provides otherwise, this section does not apply to revoke a beneficiary designation.7 e) The section does not apply to any trust or any death benefit payable to or under any trust.8 f) If the divorce was prior to July 1, 1993, this section does not apply. g) This section contains a provision related to federal preemption and states: “If this section is preempted by federal law with respect to the payment of any death benefit, a former spouse who, not for value, receives the payment of any death benefit that the former spouse is not entitled to under this section is personally liable for the amount of the payment to the person who would have been entitled to it were this section not preempted.”9
6 Section 20-111.1, 1950 Code of Virginia, as amended.
7 Section 20-111.1C, 1950 Code of Virginia, as amended.
8 Section 20-111.1C, 1950 Code of Virginia, as amended.
9 Section 20-111.1D, 1950 Code of Virginia, as amended.
4. Divorce from Bed and Board10 Virginia law provides for an interim decree without any waiting period in which a divorce from bed and board may be decreed on the sole grounds of cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment. This type of divorce cannot be granted on no-fault grounds. It does not dissolve the marital relationship. Rather, it provides for a separation where neither party is free to marry another person until after a final decree of divorce has been awarded. A Decree of Divorce from Bed and Board can be made perpetual or it can later be merged into a final decree of divorce if desired. Neither party is required to move forward with a final decree of divorce following entry of a decree of divorce from bed and board, and sometimes parties find it beneficial to remain in a condition of perpetual separation. The parties also remain free to revoke their decree of divorce from bed and board by submitting a consent order to the court signed by both sides revoking the bed and board decree. 5. Effect of Divorce from Bed and Board11 a) The court in awarding a divorce from bed and board may decree that “the parties be perpetually separated and protected in their persons and property.” b) In this instance, the statute specifies that “[s]uch decree shall operate upon property thereafter acquired, and upon the personal rights and legal capacities of the parties, as a decree for a divorce from the bond of matrimony, except that neither party shall marry again during the life of the other.” c) In other words, if the bed and board divorce is made perpetual by specific order of the court, it operates like a decree of absolute divorce with respect to after-acquired property. d) For tax purposes, a decree of divorce from bed and board qualifies as a divorce decree within the meaning of I.R.C. Sec.215 and 71. Separate maintenance payments made by the payor spouse generally will be deductible by the payor spouse and taxable to the payee spouse in the same manner as alimony payments. Entry of a Decree from Bed and Board does not bar either party from obtaining a divorce from the Bonds of matrimony in accordance with Section 20-117. 6. Justification for Leaving Bars Finding of Desertion A legally justified departure is not desertion. However, the duty of going forward with evidence of justification rests on the person who leaves, unless the justification is clear from the testimony of
10Section 20-96, 1950 Code of Virginia, as amended.
11Section 20-116, 1950 Code of Virginia, as amended. the other party. When the conduct of the other spouse creates conditions in the marital home that are so serious that they are intolerable or unendurable, this constitutes justification for a spouse to leave.12 7. Motion to Change Grounds13 When the parties have been separated for the requisite period of time, a motion to change grounds from fault based grounds to non- fault based grounds can be filed by either party. The court may utilize the non-fault ground if it chooses to do so or it may use the other party’s original grounds. It is important to note that in order to have fault considered for purposes of equitable distribution or for spousal support it is not requisite that the divorce be either requested or awarded on fault based grounds. An award of what is commonly referred to as a “no-fault”divorce does not mean that there has been a finding that there has been no fault in the separation; it merely means that the divorce has not proceeded on fault based grounds. 8. Multiple Grounds When multiple grounds are alleged and proven, the court may in its sole discretion choose which ground to utilize in awarding a divorce. 9. Divorce Procedure a) A divorce suit is instituted by the filing of a divorce in the appropriate court. b) Divorce suits have their own rules about service of process, but a party can accept service of process. c) Many people choose to settle matters by making an agreement themselves, with or without the help of an attorney, by entering into mediation, or by employing a collaborative approach to reaching an agreement. d) When the divorce involves a person who will be seeking governmental assistance, such as someone who will be applying for Medicaid, care must be taken to proceed in such a way that Medicaid does not consider a waiver of rights to have constituted an uncompensated transfer creating a penalty period. This generally means that the parties should proceed with obtaining a court order without a signed separation agreement and without the order being recorded as a “consent order”. e) If one of the parties is incompetent, a guardian ad litem may need to be appointed to represent the party’s interests. This
12 McLaughlin v. McLaughlin, 2 Va.App. 463, 346 S.E.2d 535 (1986). Kerr v. Kerr, 6 Va. App. 620, 371 S.E.2d 30 (1988); Seehorn v. Seehorn, 7 Va. App. 375, 375 S.E. 2d 7 (1988). See also Zinkhan v. Zinkhan, 2 Va. App. 200, 342 S.E.2d 658 (1986).
13Sec. 20-121.02, 1950 Code of Virginia, as amended. Also see 20-121.01. can be complicated when the parties wish to protect that party’s rights to obtain governmental benefits in order to help with the costs of long term care. 10. Divorce Involving a Person Under a Disability a) If the defendant in a divorce suit is incompetent, a guardian ad litem14 may need to be appointed to represent that person’s interest. b) However, if the person under the disability is represented by an attorney who is counsel of record, the court is not required to appoint a guardian ad litem and will do so only where it determines that the interests of justice require such an appointment. Even then, the court has the option of appointing the incapacitated person’s attorney of record as the guardian ad litem. c) Where the disability is known from the start, counsel for the plaintiff can allege in the complaint that the defendant is a person under a disability and present an order to the court for the appointment of a guardian ad litem. d) The court may allow the guardian ad litem reasonable compensation to be paid out of the estate of the defendant and if the defendant’s estate if inadequate then all or part of the guardian ad litem’s compensation and expenses can be taxed by the court as costs in the suit. e) Service of process must be made both on the person under the disability and on the guardian ad litem.15 f) If evidence is going to be taken by depositions in the divorce case, there is a requirement that the guardian ad litem either be present during the taking of the depositions or agree in advance on the questions.16 g) A “person under disability” is defined by the Code of Virginia17 to include among the persons to whom this section is described as applying: 1) An incapacitated person as defined in section 37.2- 1000, and 2) “Any other person who, upon motion to the court by any party to an action or suit or by any person in interest, is determined to be (i) incapable of taking proper care of his person (ii) incapable of properly handling and managing his estate, or (iii) otherwise unable to defend his property or
14Sec. 8.01-9, 1950 Code of Virginia, as amended.
15Sec. 8.01-297, 1950 Code of Virginia, as amended.
16Va.R.4:7(a)(6)
17Sec. 8.01-2, 1950 Code of Virginia, as amended. legal rights either because of age or temporary or permanent impairment, whether physical, mental, or both, including impairment caused by substance abuse. 11. Pendente Lite Relief a) In a divorce or separate maintenance case, the court can grant temporary relief at any stage of the proceeding, which is referred to as “pendente lite” relief.18 That relief can include things such as orders to: 1) Compel a spouse to pay money for the support and maintenance of the petitioner. 2) Compel a spouse to provide health care coverage for the petitioner unless it can be shown that such coverage cannot be obtained. 3) Enable a spouse to carry on the suit. 4) Prevent a spouse from imposing any restraint on the personal liberty of the other spouse. 5) Award the exclusive temporary use of the family residence, and 6) To preserve the estate of either spouse, so that it will be forthcoming to meet any order that may be made in the suit. b) In an appropriate case, the court has to power to appoint a conservator under section 20-103.19 In addition, upon a showing of reasonable apprehension of physical harm to the moving party by such party’s family or household member, a court may enter an order excluding that party’s family or house hold member from the jointly owned or jointly rented family dwelling.
A. Remedies Available to Seniors There are a variety of remedies available in Virginia for seniors who have been subjected to domestic violence at the hands of their spouse or of any other family or household member, just as there are for younger people. The Juvenile and Domestic Relations District Court can issue protective orders on both emergency and longer term bases when family abuse has occurred. In a divorce case, the Circuit Court can issue orders to protect a spouse against domestic abuse.
B. Family Abuse as a Type of Domestic Violence 1. According to the National Center on Elder Abuse, “between 1 and 2 million Americans age 65 or older has been abused on by someone on
18Sec. 20-103, 1950 Code of Virginia, as amended.
19See Buchanan v. Buchanan, 266 Va. 207, 585 S.E.2d 533 (2003); see also Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426 (2004) approving appointment of a conservator under section 20-103. whom they depended for care or protection.” The abuse may stem from a spouse or it may stem from a caretaker. 2. When senior abuse occurs, it may be directed at either the husband or the wife. 3. With regard to spousal abuse, the chances are that if the relationship historically has been abusive, the abuse will continue or it may escalate. 4. Even when there has been no pattern of spousal abuse during most of the marriage, it can arise later in life. Frequently, it arises where there is an increase in the drinking behavior of an older person. At other times, it may be the result of a change in personality that may arise when a person suffers from a brain tumor or from a disease such as Alzheimer’s Disease. 5. Regardless of the cause of the domestic violence, a person is not required to accept this kind of behavior, and many older people dealing with their own health problems cannot safely remain in the home with a spouse or caretaker who exhibits such behaviors. 6. The first approach to preventing this problem can come from a person’s family and health care providers. 7. If that is not successful, the law provides avenues for protecting a senior from domestic violence, as is done for younger people.
C. Obtaining Protective Orders through the Juvenile and Domestic Relations District Court (“Juvenile Court”)20 1. The Juvenile Courts can issue emergency protective orders, preliminary protective orders, and full protective orders in cases of family abuse. A spouse can obtain a protective order regardless of whether or not he or she resides in the same household with the abuser.21 Family or household members include the following persons22: a) The abuser’s spouse, whether or not the spouse resides in the same home with the abused. b) The abuser’s former spouse, whether or not the former spouse resides in the same home with the abused; c) The abuser’s parents, step-parents, children, step-children, brothers, sisters, half-brothers, half-sisters, grandparents, and grandchildren, regardless of whether these persons reside in the same home with the abused; d) The abuser’s mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law who reside in the same home with the abused.
20 Sec. 16.1-260(c)(iv).
21Sec. 16.1-228, 1950 Code of Virginia, as amended.
22Sec. 16.1-228, 1950 Code of Virginia, as amended. e) Any person who has a child in common with the abused, whether or not the person and the abused have been married or have resided together at any time; or f) Any person who cohabits with, or who within the previous twelve (12) months has cohabited with the abused, and any children of either of them then residing in the same home with the abused. 2. Nature of Relief That Can Be Obtained a) The type of order sought will determine the nature of the relief that can be obtained. In contrast to emergency or preliminary orders that may be entered ex parte or with little notice, full preliminary orders have provided the opposing party a full chance to be heard. The remedies available after a full opportunity to be heard are greater than the remedies available more quickly. b) Emergency Protective Orders 1) An emergency protective order can be issued by a magistrate or by any Juvenile Court, General District Court or Circuit Court judge. These orders can be issued in a proper case ex parte with no notice to the other side. 2) Such an order is temporary and can only grant the following remedies23: (i)Prohibit further acts of family abuse; (ii)Prohibit contact by the abuser with family or household members in order to protect the safety of the family or household members, and (iii)Exclude the abuser from the residence occupied by the parties, with a proviso that this will not affect the title to any real or personal property. (iv)An emergency protective order has a short life and has expiration times set by law. An emergency protective order generally expires at the end of the third day after it is issued, or at the end of the next business day that the juvenile court is in session if the court was not in session at the end of the third day. c) Preliminary Protective Order 1) A preliminary protective order can be entered by a juvenile court that remains in effect while the parties are waiting for the full protective order to be heard. In this way and emergency protective order can be extended if one had been issued. 2) Workers at the juvenile court can help the victim prepare a petition. When the victim states under oath that
23 Sec. 16.1-253.4(B), 1950 Code of Virginia, as amended. he/she has recently suffered family abuse or faces immediate and present danger of family abuse, the preliminary protective order may be issued without any notice to the alleged perpetrator. 3) A hearing must be held within 15 days of entry of the preliminary protective order, and the order including a date and time for the hearing on the full protective order will be served on the alleged perpetrator. 4) If the hearing is continued for good cause, the preliminary protective order remains in effect until the hearing. d) Full Protective Order 1) A full protective order24 may be issued where there has been proper service of process, notice of the hearing date, and a full opportunity to be heard. At that hearing, the court determines whether a family or household member has suffered family abuse. Proof of “immediate and present danger” is not required at the full hearing. The court has the power to issue a protective order for a period of up to two years and can impose a variety of conditions including but not limited to the following: a) Prohibiting future acts of family abuse; b) Prohibiting contact with the petitioner and/or family or household members; c) Excluding the abuser from the parties’ residence; d) Enjoining the abuser from terminating the utilities on the Petitioner’s residence or ordering the restoration of any terminated utility service; e) Granting the petitioner the exclusive temporary use of a motor vehicle, whether owned by the petitioner alone or by the parties jointly; f) Requiring that suitable alternative housing be provided for the petitioner, including payments for deposits to connect or restore utilities to that residence; g) Ordering the abuser to participate in treatment, counseling, or other programs deemed appropriate by the court; h) Assessing the attorney fees and costs against either party; and, (i) Granting any other terms or conditions necessary for the protection of the petitioner.
24Sec. 16.1-279.1, 1950 Code of Virginia, as amended.
e) Admission of Medical Records Into Evidence In civil cases in juvenile court, if sufficient notice is provided to the abuser, a properly attested Medical Report is admissible in evidence.25
D. Physical Protections available from Circuit Court in a Divorce Case 1. In a divorce suit in the Circuit Court, section 20-103 permits a court to make orders to prevent a spouse from imposing any restraint on the personal liberty of the other person. 2. It also permits the court to award one party the exclusive use and possession of the family residence during the pendency of the suit and to enjoin a party’s family or household member from the jointly owned or jointly rented family dwelling upon a showing of reasonable apprehension of physical harm.
VII. SEPARATE MAINTENANCE For a person who does not wish to obtain a divorce but who needs support, Virginia law permits an independent action known as a claim for “Separate Maintenance.” Separate Maintenance is a common law cause of action that lies in equity. The authority for a court to order separate maintenance is recognized in Section 20-107.2 of the Code. The jurisdiction of the Circuit Court over claims for separate maintenance is established by Section 20-96 which provides that such a claim shall be heard in Circuit Court as an equitable claim. Separate Maintenance ends when a final decree of divorce is entered, so it is important to establish any rights regarding alimony in the final decree of divorce if one is entered, even if one has previously been awarded a decree of separate maintenance. The proper venue for a suit for separate maintenance is the county or city in which the defendant resides at the time the suit is filed.
VIII. SPOUSAL SUPPORT A. Jurisdiction Generally, an action for spousal support may be brought in the Juvenile and Domestic Relations District Court or it may be brought as a component of a divorce suit in Circuit Court. Once a divorce suit is over, the court may transfer the case to juvenile court for all further matters relating to support, but even such a transfer does not mean that the Circuit Court has lost its concurrent jurisdiction in that situation. However, if a Circuit Court acquires its jurisdiction merely from an appeal of a Juvenile Court matter, the Circuit Court loses its jurisdiction over that matter upon hearing the appeal and remanding it back to the Juvenile Court where the matter originated. A court has no authority to order payment of support from the estate of a deceased spouse.26
25Sec 16.1-245.1, 1950 Code of Virginia, as amended.
26Sec. 20-107.1(A)
B. Eligibility for Spousal Support Entitlement to support is not automatic. In determining whether or not to award support to a separated spouse, the court must consider27 the circumstances and factors that contributed to the dissolution of the marriage, including specifically adultery, desertion or abandonment, cruelty or reasonable apprehension of bodily harm, and conviction of a felony and sentence for a period of more than one year. Adultery is the one fault ground that is a per se bar to spousal support unless the court finds that a denial of support would constitute a “manifest injustice.”
C. Information Gathering When spousal support is sought, information must be gathered and supported with documentation concerning the parties’ financial conditions and concerning the factors that the court is required to consider in determining spousal support matters.28 It is customary for the parties to each complete an income and expense statement on a standard form proscribed by the court. Formal Discovery is available in both Juvenile Court and Circuit Court, although the discovery permitted in Circuit Court is more extensive. 1. Factors to be Considered By the Court in Awarding Spousal Support a) If the court has determined that there is to be no bar to a spousal support award, it must then take into consideration the following factors listed in Section 20-107.1(E) to determine the nature, amount and duration of an award of spousal support: (i) The obligations, need and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans of whatever nature; (ii) The standard of living established during the marriage; (iii) The duration of the marriage; (iv) The age and physical and mental condition of the parties and the special circumstances of the family; (v) The extent to which the age, physical or mental condition, or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home; (vi) The contributions, monetary and nonmonetary, of each party to the well-being of the family; (vii) The property interests of the parties, both real and personal, tangible and intangible;
27Sec. 20-107.1(B)
28Sec 20-107.1(E), 1950 Code of Virginia, as amended. (viii) The provisions made with regard to the marital property under 20-107.3; (ix) The earning capacity, including the skills, education, and training of the parties and the present employment opportunities for persons possessing such earning capacity; (x) The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training, and employment to obtain the skills needed to enhance the party’s earning ability; (xi) The decisions regarding employment, career, economics, education, and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market; (xii) The extent to which either party has contributed to the attainment of education, training, career position, or profession of the other party; and (xiii) Such other factors, including the tax consequences to each party, that are necessary to consider the equities between the parties. 2. Forms of Support a) There are three different forms which support may take: periodic payments for a defined duration, periodic payments for an undefined duration, and a lump sum award. The court may order one of these forms or a combination for forms. b) When an initial award is not made, the court may grant a reservation of the right to seek support in the future. There is a rebuttable presumption that the reservation period will be equal to 50% of the length of time of the marriage (up to the date of separation). 3. Written Findings and Conclusions In contested support cases in circuit court, the court must make written findings and conclusions for its order.29 4. Modification c) Any agreement of the parties as to spousal support cannot be modified by the court unless the agreement states otherwise. Accordingly, support amounts based on agreements are fixed and non-modifiable unless the agreement states otherwise. d) Spousal support based on the court’s determination is modifiable upon changed circumstances that justify a modification.
29 Sec. 20-107.1 (F), 1950 Code of Virginia, as amended. IX. EQUITABLE DISTRIBUTION Virginia is an equitable distribution state rather than a community property state. This means that the law recognizes marriage as a partnership and grants the courts power to divide the assets which are the fruits of the marriage equitably. Under Virginia law, the parties are permitted to make their own agreements about the division of property. The courts must uphold a valid agreement and cannot enter an order inconsistent with the terms of that agreement. Section 20-107.3 governs equitable distribution of assets and debts. All assets must be classified as marital, separate, or hybrid based on the classification situation at the date of separation. Assets must be valued, and the valuation date normally is the date of the evidentiary hearing.30 In an equitable distribution hearing, the court must determine the title, ownership, classification and value of all property. The court has the power to divide jointly owned marital property and/or to make a monetary award to adjust property interests. The court also can make a pension-based award 31 not to exceed ½ the marital share of the pension and to grant survivor benefits if available and to make injury-based awards related to personal injury or worker’s compensation recoveries in accordance with the requirements of the statute.32 In dividing pensions, profit-sharing or deferred compensation plans or other retirement benefits requiring a court order, the court enters what is referred to as a Qualified Domestic Relations Order (“QDRO).
X. LONG TERM CARE PLANNING An important concern of seniors is the ability to qualify for long term care benefits such as Veterans Benefits or Medicaid. Whenever a family law attorney is assisting seniors with a prenuptial agreement or advising them about separation and divorce, it is essential that the attorney keep in mind the potential for needing such long term care assistance and consider the interplay between elder law and family law. When an elder law attorney is assisting a senior with long term care planning, if it becomes apparent that separation or divorce may be necessary to protect the senior, it is important that the elder law attorney understand what can and cannot be accomplished in the family law arena.
XI. CONCLUSION Increasingly, Family Law and Elder Law attorneys will be handling intersecting matters due in large measure to the growth in the elderly population. As seniors’ age and longevity coincides with disability, practitioners will need to keep abreast of critical issues that will be affecting the elderly and to understand their particular needs. Whether it is in drafting a prenuptial agreement, advising a senior on separation or divorce, advancing voluntary arrangements, working through the court system, or assisting with long term care needs, attorneys must help seniors to navigate the intricacies of Family Law and Elder Law. Attorneys in both practice areas will be working with seniors, often with their families, to develop comprehensive strategies in order to serve seniors – to protect their legal interests, preserve their
30Sec. 20-107.3(A), 1950 Code of Virginia, as amended.
31Sec. 20-107.3(G)(1), 1950 Code of Virginia, as amended.
32Sec. 20-107.3(H) assets, establish long term care planning and provide legal representation that will meet their specific goals and objectives.